Friday, November 23, 2012

German appeals court may broaden scope of Apple's photo gallery injunction against Motorola

Yesterday I attended, at the Oberlandesgericht München (Munich Higher Regional Court), the first appeals hearing worldwide in an Apple-Google dispute. Germany's higher regional courts are the equivalent of U.S. circuit courts.

The patent-in-suit is EP2059868 on a "portable electronic device for photo management". I frequently refer to this one as the "photo gallery page-flipping patent".

Apple and wholly-owned Google subsidiary Motorola Mobility (which was notably represented by Google's director of IP litigation, Catherine Lacavera, on Thanksgiving Day, a fact that speaks to the significance of this matter) are both appealing the Munich I Regional Court's March 1, 2012 decision. The lower court had sided with Apple on one infringement theory but with Motorola on the other. While Motorola seeks to do away with the injunction as it stands, the objective of Apple's appeal is to broaden the scope of the feature-specific sales ban.

At the outset of the hearing, Judge Konrad Retzer, who is presiding over the panel of judges hearing all Munich patent appeals, mentioned that other courts have already ruled on this patent. In chronological order, previous decisions were made by the Rechtbank 's-Gravenhage, a court of first instance in the Dutch city of The Hague in August 2011 (a Samsung case); the Mannheim Regional Court in May 2012 (another Samsung case); and the UK High Court in July 2012 (a declaratory judgment action brought by HTC).

Judge Retzer said that he didn't know yet which of these different stances his court would ultimately adopt, but he said that a broader claim construction appears appropriate.

A broader understanding would be consistent with the infringement analysis underlying a May 2012 order to stay an Apple v. Samsung case (over doubts about the validity of the patent) entered by Judge Voss ("Voß" in German) of the Mannheim Regional Court, who has adjudged far more smartphone patents than anyone else in the world and is renowned for his grasp of technical matters.

Motorola's lead counsel, Dr. Marcus Grosch of Quinn Emanuel, told the court what this is really about from a business point of view: while Motorola has already (and I presumably without much effort) worked around the existing injunction, the need to work around a broader injunction would have considerably further-reaching implications. The way I view it, a broader injunction would most likely require Google (Motorola) to add buttons (which would probably be or contain arrows) to the display of photos in its gallery. The broader understanding would rule out an exclusively gesture-based solution. Screen space is precious real estate on a small form factor, and the photo viewing experience deteriorates if there are too many other visual elements on the screen. This is what Google wants to avoid, and it therefore tried very hard to persuade Judge Retzer and his colleagues of its narrower claim construction.

I've attended multiple hearings and trials involving this patent, and have read and analyzed all of the aforementioned court decisions. I'll try to explain the technical part briefly.

The two key issues at this stage of the proceedings relate to a "hidden edge" and the distinction between two swiping gestures, one that serves the purpose of navigating within a picture that is larger than the screen and one that has the effect of flipping pages, or more specifically, moving on to the next picture in a gallery.

The claim language requires that the edge of one picture be "hidden". The Android ecosystem's attempt to work around this claim limitation is to actually display one row of pixels at the edge of the screen, but it's only one row, meaning its width is only one pixel. In an extremely literal sense, this means that the edge is not hidden, but in practical terms, it simply isn't perceptible. The lawyers of Android device makers have been astoundingly successful in their efforts to convince certain judges that this is a valid workaround. They argue that claim limitations must constitute objective criteria. But on this one I agree with Apple, for two reasons:

As Apple's lead counsel in these appellate proceedings, Dr. Markus Gampp of Freshfields Bruckhaus Deringer, argued yesterday, no user would understand something of a width of only one pixel to be part of a picture. His counterpart had argued that the user is not part of the claim language, but given that this is a user interface patent, I do believe that a user-centric approach is warranted.

I look at this in technical terms and the way to display, at the right edge of the screen, only the first row of pixels is to position the image as a whole at the edge of the screen. All graphical operating systems have clipping algorithms built in and don't display any object or part of an object that is outside the visible part of the virtual screen. And it's even possible to place objects outside the visible screen area. For the display of a photo gallery, this would even make sense: a program could technically position all of the items somewhere, but most of them might have coordinates outside, some of them maybe even far outside, the visible area. If the user scrolls, you then justhave a loop adjust the X coordinates of all items. That's why Motorola's proposal that visibility should in some way depend on what's visible to the system doesn't make sense to me: the computer would also see those items that have coordinates outside the visible screen area.

The question of the two gestures is a trickier one. The Munich I Regional Court is not alone in its conviction that the two gestures -- the one for navigation within the first picture and the one bringing up the next picture -- must be viewed as having a chronological and sequential order for the purposes of this patent. I have read this patent more than once and even after both parties presented their strongest arguments yesterday, I don't see any conclusive evidence that the second gesture (the page-turning one) must follow the first one. This certainly can be the case. The description of the patent refers to the possibility of a maximum period of time between the two gestures. Also, when I read the relevant paragraphs of the description, it really looks to me like what someone would write if the underlying assumption is sequentiality. But Motorola's workaround, which is that the two gestures are distinguished by the length of a movement, can reasonably be deemed to fall within the scope of the patent. If this couldn't be decided either way, there wouldn't have been different decisions, all of them by very reasonable and competent judges.

Motorola is also pushing for a stay, arguing that the patent may very well be invalidated by the Bundespatentgericht (Federal Patent Court), which has scheduled a hearing for September 26, 2013.

Judge Retzer scheduled his appellate decision for February 28, 2013. After his initial remarks he didn't indicate his inclination in any way. German appeals courts sometimes decide right after a hearing. In this case, it takes a few more months. And by the time the decision comes down, the nullity (invalidation) hearing will be a mere seven months away, which makes a stay quite possible. Apple is already enforcing the lower court's injunction and posted a bond or made a deposit. But a decision by the appeals court would be enforceable without a bond or deposit.

The next Apple v. Motorola Mobility appeals hearing in Munich will take place on December 13 and involve the slide-to-unlock patent, another patent on which Apple had prevailed in part.

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About Me

Florian Mueller is a former award-winning intellectual property activist with 25 years of software industry expertise spanning across different market segments (games, education, productivity and infrastructure software), diverse business models and a variety of technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof.) He is now developing a game app for smartphones and tablet computers.